This month's article is contributed by Lea Polito, a 1L at UNH Franklin Pierce School of Law.
It is difficult to envision a field that has remained unscathed by the COVID-19 pandemic, and patent prosecution is no exception. In response, the USPTO has provided assistance to the inventors and entities hit hardest by the pandemic. The USPTO extended CARES act relief for small and micro entities by providing extensions for the payment of filing fees, issue fees, maintenance fees, and others that were originally due at the end of March until the end of September. The USPTO also granted extensions of time to restore the priority date of filings delayed due to COVID-19 through the end of July, a critical step in securing inventors’ rights facing unforeseen economic hardships. Also, the PTAB has been flexible in granting extensions of time during proceedings on a case-by-case basis. For example, in Unified Patents v. Qwikcash, an ongoing inter partes review, the PTAB granted a thirty-day extension of time for Qwikcash’s preliminary response. No. IPR2020-00972, 2020 WL 5498941 (P.T.A.B. Sept. 11, 2020). Qwikcash is a small entity managed solely by a seventy-nine-year-old inventor who was unable to file a timely response because he contracted COVID-19 and was still recovering. Many incentives and issues exist in patenting COVID-19 technologies. The USPTO recently announced a deferred fee provisional patent application for small and micro entities for inventions that combat COVID-19. This is contingent on the applicant’s agreement to publish the subject matter disclosed in the application on the USPTO’s website in an effort to promote and circulate the information to the public-encouraging innovation while protecting patent rights. For larger entities working toward a COVID-19 vaccine, there is a complex balance between granting access to patented COVID-19-related technologies to allow for collaboration in vaccine development while also providing incentives for companies to continue to develop and patent new technologies. Additionally, allowing companies to retain their patent rights encourages profit-motivated innovation. However, licensing issues can create barriers in granting public access to vaccines and treatments, which is particularly problematic for low-income countries. With the recent news of the potential effectiveness of Pfizer’s vaccine, it will be interesting to see how the access versus incentives dilemma is resolved. With the majority of Americans working remotely, there has been an influx of patent applications for work-from-home (WFH) technologies. A recent UChicago study sought to quantify the increase in WFH patent applications. The researchers examined the XML files of patent applications for key terms defined in a word bank in order to extract the number of WFH patent applications from a data set of about 3.5 million filings over the past ten years. Notably, the study suggests that from January to May 2020, the share of patent applications in the data set pertaining to WFH technologies had almost doubled, from about 0.53% to about 1.03%. This increase is likely a reflection of the increased demand on large suppliers of these technologies as well as working-class inventors creating their own solutions to the everyday inconveniences faced in their home offices. COVID-19 has stalled the number of utility patents granted to an extent, but as of July, 2020 is still likely to fall in the top five years with the highest number of utility patents issued. In looking at the long-term impact of the COVID-19 economic recession on patent prosecution, comparisons to the Dotcom Bubble recession from 2000-2002 and the Subprime Mortgage Crisis from 2007-2009 may be useful. Under stable economic conditions, there is an average yearly increase in the number of patent applications filed by about 18,000 each year. This increase still occurred in the first year of both recessions but then became static. From the beginning to the end of both recessions, there was a 7-8% total decrease in the number of applications filed, and it took about five years after both recessions for this number to rebound. The number of abandonments per year sharply increased in both recessions and peaked at a 21.8% increase in 2002 and a 30.7% increase in 2009. If the COVID-19 recession follows the trends from these recent recessions, there probably will not be an apparent impact on the number of applications and abandonments for at least another year or two. The government aid provided in the CARES act and the USPTO’s flexibility may help mitigate the adverse effects that the COVID-19 recession will have on patent prosecution. However, given the uncertain duration of the pandemic, it is unclear as to whether the COVID-19 recession will follow any sort of trend at all.
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